Consideration
50 At the outset, we accept, as the Minister accepted, that the construction of s 36(2)(aa) requires the Tribunal to proceed on the basis of a prospective removal from Australia and the harm that might befall the visa applicant in that scenario.
51 We also accept that the Tribunal is required to assess the individual circumstances of the visa applicant and the basis on which they claim that the circumstances give rise to the requisite chance of harm. When considering the claim, with its inherently prospective nature, the Tribunal is not obliged to consider claims divorced from all practical reality, having regard to the guidance provided by DQU16 and Guo.
52 The nature of the inquiry will depend upon the manner in which a claim is made. Absent the identification by the visa applicant of any particular link between the mode of removal and the feared harm, it may not be necessary for the Tribunal to identify the mode of removal. It may be sufficient to proceed on the basis that one way or another, assuming the visa applicant to have been removed to the receiving country, the person claims that they will be exposed to a real risk of significant harm.
53 It might be that the country information received by the Tribunal refers to particular risks associated with involuntary removal, as against voluntary removal. If so, that might focus the attention of the Tribunal on whether the visa applicant has made a claim based on any particular mode of removal.
54 It might be the case that the terms of the protection claim focus on involuntary removal but also disclose that the visa applicant asserts that they will not return voluntarily, or leaves that question and the prospect of any other means of removal open. In that scenario a decision maker would need to test the prospect of involuntary return. They might find, for example, that no involuntary removal can proceed based on country information, or that there is no reliable information as to what might happen in the returning country upon an involuntary removal, such that the protection claim is not made out. However, their consideration of involuntary removal may not be sufficient to meet the statutory task because there may be other prospective methods of removal that should be addressed. For example, once a finding is made that there will be no involuntary removal, some testing of the prospect that the visa applicant might return voluntarily may be required, even where the visa applicant has expressed a reluctance or refusal to do so. Such an approach is consistent with the decision maker proceeding under a provision that does not prescribe the manner of any prospective removal.
55 For this reason, the Minister correctly accepted that it will not be sufficient for a decision maker simply to find that there is no prospect of an involuntary removal, and to conclude on that basis that there are no grounds that establish the criteria for a protection visa under s 36(2)(aa). A more substantive reasoning process is required in order to properly undertake the statutory task. A careful analysis of the claims is required.
56 Having said that, the Tribunal is not obliged to speculate as to any number of theoretical modes of removal and make findings as to the risk of harm that might follow from each. However, where a particular mode of removal is identified by an applicant (for example, entry to a particular port) and linked to a particular risk of harm, then that claim falls to be considered in the same manner as any other factual premise that underlies a claim.
57 We also acknowledge that there may be circumstances where the Tribunal finds that there is no real prospect of removal at all and it is far-fetched to assume to the contrary. In our view, such circumstances might provide an example of a case where the criteria in s 36(2)(aa) cannot be met and the visa applicant will have failed to make out a case for a protection visa. That is because the applicant will have failed to persuade the Tribunal that there is a realistic scenario in which, on return, he or she will suffer harm. Then there may not be an evidentiary basis for any 'substantial grounds' as required. That outcome will not be the result of a finding that return to the receiving country will not occur under any circumstances. It will be the result of a lack of evidence as to how that return will occur and its consequences.
58 We acknowledge that this may lead to an unenviable outcome for a failed visa applicant by way of detention that might continue indefinitely until they are able to be removed (voluntarily or otherwise): Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219. We do not speculate as to other potential outcomes, such as whether there might be another type of visa for which a person in the position of DFO19 might apply.
59 We do not suggest that the prospect of indefinite detention, relied upon in particular in APM19's submissions, is irrelevant to the current issue. For example, it may well inform the question of the likelihood of any requested removal or other voluntary return in a particular case. However, the task under s 36(2)(aa) is not analogous to the task to be undertaken by a decision maker considering cancellation of a visa or revocation of a cancellation decision in circumstances where such cancellation may result in indefinite detention: see, for example, the discussion in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; (2021) 283 FCR 525 (Perram, Wigney and SC Derrington JJ). In such cases, the prospect of indefinite detention may fall to be considered in the exercise of a discretion. The nature of the statutory task on an application for a protection visa is different. It is not a discretion, but for the purpose of s 36(2)(aa), the Tribunal was obliged to consider whether the criterion was met, in the prospective manner explained in DQU16.
60 As to APM19's submission that there may be a change in position to permit involuntary return sometime in the future (see [31] above), the Tribunal did not ignore this prospect, either in DFO19's case or, as will be seen, that of APM19. It considered and rejected it, finding in both cases that 'into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU': see extracts from reasons at [15] above and [107] below. The provision does not require the Tribunal to consider all hypothetical outcomes into the future. A scenario where a government of a receiving country might change its position on involuntary returnees is not the only example where the circumstances relating to a receiving country might change after a protection visa has been refused. The potential response of the Minister to significant changes in position in the context the operation of s 198 of the Migration Act, the Minister's personal powers under s 417 or otherwise, would, in the absence of any evidence, require a high degree of speculation - and we were taken to none that was relevantly before the Tribunal in these proceedings.
61 Finally, we turn to APM19's reliance on the relevant passage from Buchanan J in SZUNZ. The appellant in SZUNZ was stateless. He challenged the decision of the RRT to treat Norway as the sole potential receiving country on the basis of habitual residence, when he had lived in other countries such as Spain, Algeria, Morocco and Western Sahara. Having determined that Norway was the receiving country, the RRT considered the criterion for a protection visa in s 36(2)(aa) of the Migration Act. In short, the protection claim centred on the appellant's fear of retribution from criminal gangs. The RRT found that taking the country information as a whole, the Norwegian authorities would protect the appellant if he returned such that he would not suffer significant harm.
62 The case centres on the (former) definition of 'receiving country' and more particularly the meaning of 'habitual resident', and whether the question of habitual residency was to be determined solely by reference to the law of the receiving country or engages with the facts, or the 'practical possibility of return to the place where a person has habitually lived'. The definition of 'receiving country' has since been amended.
63 The indications were that despite the finding that the appellant was a habitual resident of Norway, and so the relevant receiving country was Norway, removal to Norway might be practically impossible because Norway would not accept him. The appellant does not appear to have criticised the manner in which the RRT then considered whether there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Norway. That was not the gravamen of the review application or the appeal. Whether there was a requirement that the RRT undertake the assessment even though Norway apparently would not accept the appellant was not questioned. Nor was there any discussion of how the task might be undertaken if there were potentially different hypothetical modes of return. Therefore, SZUNZ does not assist with the particular question now being considered.